Research Paper Series

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Departments: Tax & Law, GREGHEC (CNRS)

This time was supposed 'to be different', at least this was the motto of the 2014 European Parliament elections campaign. With less than a year before the next European elections, the time is ripe to examine how different this EU political cycle has actually been. Emboldened by the Spitzenkandidaten process – which established for the first time a link between the outcome of the EU elections and the presidency of the EU Commission –, the Juncker Commission emerged as the most political yet. To shrug off the label of technocratic institution – historically insulated from citizens’ preferences –, the new Commission asked EU citizens to judge its operation by its ability ‘to deliver solutions to the big issues that cannot be addressed by the Member States alone’. While the Better Regulation Agenda might have improved the Commission’s public accountability – with both citizens and stakeholders being better informed about and engaged with EU policy-making –, without however increasing its responsiveness to public preferences. This is the case at the input, throughput and output stage. Rather, the techno-political approach to policymaking – which characterizes the Juncker’s Better Regulation – might have paradoxically led to a compression of participatory democracy and somehow chilled stakeholder engagement. At a time of unprecedented contestation of the EU project – a trend which is combined by a record-demand for new forms of political representation –, it appears paradoxical that the EU – an early promoter of participation – is missing out the chance to seize the momentum to diversify and redesign its participatory structures being busy delivering on its electoral promises no one will ever judge.At the very same time the Juncker Commission has been striving to develop its own, autonomous democratic credentials, its choice to embrace a set of well-defined institutional mechanisms that reward expert judgment over political adjudication appears at odds with its newly-acquired political nature.


Departments: Tax & Law, GREGHEC (CNRS)

This article hinges on the preliminary ruling rendered by the Court of Justice of the EU (CJEU) (Grand Chamber) on 18 October 2016 and the related judgment of the German Federal Labour Court of 26 April 2017 in the Nikiforidis case to investigate an area of private international law that is undergoing a substantial development: overriding mandatory provisions. In Nikiforidis, the CJEU excluded that two Greek laws cutting the salary of public employees may be enforced against a teacher working in Germany for the Greek Government under an employment contract governed by German law. The question addressed to the CJEU was whether the said laws were “overriding mandatory provisions” according to the Rome I Regulation. The Court denied it, and left to the referring court to determine whether they could nevertheless operate “as matter of fact” under the governing law. This article explains how the CJEU’s conclusion has broader implications by regulating third countries’ interference in international business transactions. Starting with an analysis of the case, the article examines the history and nature of overriding mandatory provisions under EU private international law and argues that the solution embraced by the CJEU leaves room for uncertainty and unpredictability in the operation of foreign mandatory provisions.

Keywords: Amendments; Applicable law; Contracts of employment; EU law; Germany; Greece; Remuneration


Departments: Tax & Law, GREGHEC (CNRS)

European legal teaching - historically formalistic, doctrinal, hierarchical, and passive - is coming under increasing pressure to re-imagine itself as pragmatic, policy-aware, and action-oriented. Out of this context, a bottom-up movement of university law clinics appears to be emerging in Europe. Although intellectually indebted to the US model, the European variant reflects legal education and practice in Europe, specifically the multi-layered and multi-genetic legal landscape resulting from the Europeanization and internationalization of national legal systems, the globalization of European legal markets, and the growing demand for civic engagement in view of increasingly powerful supra-national institutions. Through the prism of clinical legal education, Reinventing Legal Education is the first attempt to gather scholarly and systematic reflections on the developments taking place in European legal teaching and practice. This groundbreaking book should be read by anyone interested in how clinical legal education is reinventing legal education in Europe.

Keywords: Legal Education, Law Reform, Participation, Civic empowerment, Coalitions, Legitimacy, Accountability, Civil society, European Union, Good governance


Departments: Tax & Law, GREGHEC (CNRS)

This article examines the judgment of the Italian Supreme Court (Corte di Cassazione) no 11696 of 14 May 2018 concerning the legal status of mixed same-sex married couples under Italian law. It explores the problems relating to the recognition and the civil status registration in Italy of couples of the same sex where one spouse is a foreigner and the other is Italian. Legge 20 May 2016 no 76 (registered partnerships law) and decreto legislativo 19 January 2017 no 7 established a regime under which Italian couples who married abroad are recognised and registered, hence downgraded, as civil partners, whereas foreign couples are recognised and registered as married. They say nothing, however, on mixed couples. During the parliamentary debate, however, the government affirmed that their main concern was to avoid Italians to circumvent the registered partnerships law by marrying abroad and then obtaining the recognition of their marriage in Italy. Based on this intent, the Supreme Court found that mixed couples are subject to the same antielusive logic – a construction that this article criticises under several viewpoints.


Departments: Tax & Law, GREGHEC (CNRS)

The EU’s political system has never caught up with the impact European integration has had on citizens’ daily lives. EU citizens still vote in the European Parliament elections on different dates, according to different electoral laws, and in support of candidates selected by national parties and on the basis of domestic agendas. Yet this is set to change. With less than a year to go before the European Parliament elections, the EU political landscape is about to undergo a deep and historical shake-up. While populists are poised to disrupt the Parliament, a new wave of little-noticed transnational parties is emerging from the bottom-up. They both threaten established, mainstream political parties that have historically hold a monopoly of the European ‘project’. This paper traces their genesis, evolution and raison d'être before identifying their major features and political prospect.

Keywords: Elections, Parties, Europe, trasnational parties, European Parliament, Spitzenkandidated, Trasnational list


Departments: Tax & Law, GREGHEC (CNRS)

This article examines the concept of “significant imbalance” (SI) under French law and its impact on international business transactions. “Significant imbalance” is a legal standard meant to assess whether a contractual clause is unfair (abusive). Although initially restricted to consumer law, it has been extended to general contract law with the implementation of a reform entered into force on 1st October 2016. Previously, the Commercial Court of Paris in the ruling Ministry of Economy et al. v. Expedia, Inc. et al. (2015) had qualified SI as an “overriding mandatory provision” (loi de police) under EU Regulation No. 593/2008 on the applicable law to contractual obligations (Rome I). As a consequence, SI became operative in respect of international contracts despite an express choice of a foreign governing law made by the parties to the transaction. This article argues that, as a result of Expedia and the 2016 reform, French courts can interfere with international business transactions by striking down contractual terms that they deem unfair according to the SI standard. The analysis focuses on two key issues. On the one hand, notwithstanding recent judicial precedents, SI still fails to provide a reliable test for predicting which clauses or contracts are at risk of being deemed unfair. On the other hand, the legal arsenal supporting French legislator’s disapproval of SI allocates great power to French courts and the French government to pursue tort lawsuits against foreign companies allegedly oppressing their commercial partners with SI clauses. Empirical evidence shows that these actions are highly successful compared to those commenced by private actors. The article concludes that all these aspects, together with SI’s turbulent case-law throughout the years, will sprout uncertainty in international business transactions and may eventually disparage France in the global competition in such a field.

Keywords: Contract, International Business Transactions, French Law, Conflict of Laws


Departments: Tax & Law, GREGHEC (CNRS)

It is almost a truism to argue that data holds a great promise of transformative resources for social good, by helping to address a complex range of societal issues, ranging from saving lives in the aftermath of a natural disaster to predicting teen suicides. Yet it is not public authorities who hold this real-time data, but private entities, such as mobile network operators and business card companies, and - with even greater detail - tech firms such as Google through its globally-dominant search engine, and, in particular, social media platforms, such as Facebook and Twitter. Besides a few isolated and self-proclaimed ‘data philanthropy’ initiatives and other corporate data-sharing collaborations, data-rich companies have historically shown resistance to not only share this data for the public good, but also to identify its inherent social, non-commercial benefit. How to explain to citizens across the world that their own data – which has been aggressively harvested over time – can’t be used, and not even in emergency situations? Responding to this unsettling question entails a fascinating research journey for anyone interested in how the promises of big data could deliver for society as a whole. In the absence of a plausible solution, the number of societal problems that won’t be solved unless firms like Facebook, Google and Apple start coughing up more data-based evidence will increase exponentially, as well as societal rejection of their underlying business models.This article identifies the major challenges of unlocking private-held data to the benefit of society and sketches a research agenda for scholars interested in collaborative and regulatory solutions aimed at unlocking privately-held data for good.

Keywords: Big data, data, data governance, data sharing, data risk, data invisible, risk governance, philanthropy


Departments: Tax & Law, GREGHEC (CNRS)

The EU’s approach to fake news, as epitomised by the European External Action (EEAS) Service East Stratcom Disinformation Review, violates the rights to freedom of expression and due process of those accused of distributing disinformation. The EU Disinformation Review is a publication of the European External Action Service (the European Union’s diplomatic service) to target fake news and online disinformation. Following our request for access to documents, EEAS conceded that the EU Disinformation Review uses an “ad hoc” methodology for conducting its fact-checks, which makes it an outlier in the international fact-checking community led by the International Fact-Checking Network (IFCN). Despite being a well-intentioned initiative to respond to the challenges posed by pro-Kremlin disinformation, the EU should ensure the respect of fundamental rights when engaging in fact-checking.The EU Disinformation Review seeks to control the right to freedom of expression by labelling publishers as “disinforming outlets” and their content as “disinformation,” creating a chilling effect on the work of journalists that is central to democracy. The right to freedom of expression is expressed in Article 11.1 of the Charter of Fundamental Rights of the European Union (2000/C 364/01) and Article 10 of the European Convention on Human Rights. The labelling of publishers as “disinformation outlets” is contrary to principle of the freedom of press established by the European Court of Human Rights: “[a] general requirement for journalists systematically and formally to distance themselves from the content of a quotation that might insult or provoke others or damage their reputation is not reconcilable with the press’ role of providing information on current events, opinion and ideas.”In addition, the methodology used by EEAS in the EU Disinformation Review is “ad hoc,” which constitutes a violation of the fundamental right to good administration in Article 41 of the European Charter of Fundamental Rights. Specifically, the ad hoc design and operation of the EU Disinformation Review fails to ensure the review acts “impartially, fairly and within a reasonable time.”First, publications are not provided with the right to be heard or proper notice. The EU Disinformation Review’s homepage offers an opportunity to contact the Task Force report a suspected mistake in a fact-check but the page is only available in English, in violation of the principle of multilingualism, and no notice if given to outlets accused of being “disinforming outlets” before or after fact-checks of their content are published.Second, the EEAS does not fulfil its duty to motivate. EEAS is given a broad margin of discretion to identify disinformation, but fails to do so according to a consistent methodology. Therefore, EEAS cannot justify, on the basis of objective criteria, its choice of which content to review and how to determine its truth or falsehood.To comply with EU law and ensure the respect of fundamental rights, the EEAS should develop and make public (1) a methodology for selecting partnerships and reviewing fact-checks in line with international standards and (2) a notice and response mechanism for journalists, publishers and citizens whose content is being reviewed. If EEAS is unable to comply with the above, the EU Disinformation Review should be shut down.

Keywords: Fake news, EU Law, European Ombudsman, Access to Information, Transparency


Departments: Tax & Law, GREGHEC (CNRS)

Fake news is a symptom of deeper structural problems in our societies and media environments. To counter it, policymakers need to take into account the underlying, self-reinforcing mechanisms that make this old phenomenon so pervasive today. Only by taking a step back can we examine the vulnerabilities these fake news narratives exploit. This article provides a first taxonomy of anti-fake news approaches. It argues that proposed anti-fake news laws focus on the trees rather than the forest. As such, they will not only remain irrelevant but also aggravate the root causes fueling the fake news phenomenon.

Keywords: Fake new, disinformation, misinformation, media, behavioural, better regulation, digital agenda


Departments: Tax & Law, GREGHEC (CNRS)

This complaint to the European Ombudsman by Access Info Europe and the HEC-NYU EU Public Interest Clinic alleges maladministration in the selection of judges for the Courts of Justice of the EU (CJEU). The complaint argues that the Council of Europe wrongly refused access to information on selection processes used for CJEU judges.For each judicial appointment to the CJEU, a special panel issues an opinion regarding the candidate’s suitability. This opinion is not made publicly available and is only shared with member states.Since 2014, the clinic has repeatedly sought access to the panel opinions. The underlying rationale for requesting access to these opinions is that the public has a right to expect a high degree of transparency about the professional competence of candidates during the judicial selection process.The Council denied access to the opinions arguing Regulation 1049/2001 (on public access to EU institutions’ documents) does not apply to the requested documents and that the procedure for appointing judges and Advocates General is not within the Council’s “sphere of responsibility.” The EU Ombudsman opened an investigation in 2015 and after examining the panel’s opinion she encouraged the Council to reconsider its disclosure policy.During this process, the Council announced that it had reassessed its practices and decided to apply Regulation 1049/2001 to documents held by its General Secretariat in relation to tasks supporting various intergovernmental bodies and entities, including the relevant panel.The Ombudsman welcomed the Council's policy change, and encouraged the complainants to file a new access request to the Council.In her final 2016 decision, the Ombudsman stated that data relating to the professional competence and activities of public figures, especially those appointed to a high level public posts, may not require the same level of protection as might apply to personal data in other circumstances.Access Info and the clinic therefore made a repeat request to the Council. A first reply from the Council, received on the same day as the Ombudsman published her final 2016 decision, only granted partial access to the documents and left aside all information relating to the suitability of the candidates – which is the subject matter of this complaint.The complaint follows on an earlier complaint submitted to the Ombudsman: http://ssrn.com/abstract=2636877.

Keywords: Judicial Transparency, CJEU, Court of Justice, EU Law, European Ombudsman, Access to Information, Transparency, Judicial, Judges


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